Jharkhand High Court
Prem Prakash vs Union Of India Through The Directorate ... on 22 March, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1 B.A. No.9863/2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.9863 of 2023
------
Prem Prakash, aged about 47 years, son of Pramod Kumar Sinha, resident of Flat No.3K/7, Harmu Housing Colony, P.O. Harmu, P.S. Argora, District Ranchi. .... .... Petitioner Versus Union of India through the Directorate of Enforcement .... .... Opp. Party CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Sneh Singh, Advocate For the Opp. Party : Mr. Anil Kumar, Addl. S.G.I. Ms. Chandana Kumari, AC to Addl. SGI
------
C.A.V. on 23.02.2024 Pronounced on 22/03/2024 Prayer
1. The instant application has been filed under Sections 439 and 440 of Code of Criminal Procedure for grant of regular bail to the petitioner, in connection with ECIR Case No.05 of 2023 in ECIR- RNZO/10/2023, registered for alleged offence under Section 3 punishable under Section 4 of Prevention of Money Laundering Act, 2002, pending in the Court of Special Judge, P.M.L. Act, Ranchi. Prosecution case/Facts
2. The brief facts of the case is that an ECIR bearing no. RNZO / 10 / 2023 was recorded on 07.03.2023 and investigation under the provisions of Prevention of Money Laundering Act (PMLA) was initiated on the basis of FIR being Sadar P.S. Case no. 399 of 2022 dated 08.09.2022 registered for offences under Sections 406, 420, 467, 468, 447, 504, 506, 341, 323 & 34 of the Indian Penal Code 2 B.A. No.9863/2023 since offences under Section 420 and 467 of IPC are Scheduled Offences under Part A of the Schedule of PMLA, 2002. Purportedly, another FIR number 137 of 2023 dated 10.05.2023 under Sections 120B, 465, 467, 468 & 471 of the Indian Penal Code was also registered at Hare Street PS, Kolkata on the basis of the report of the fact finding committee of the Registrar of Assurances, Kolkata which has also been made a part of the investigation as the FIR has been registered for three different forged deeds which were manufactured to acquire different landed properties including the property measuring 1 acre at Cheshire Home Road, Plot No 28, Khata No. 37, Mouza Gari, Ranchi, Jharkhand.
3. It has been stated that the FIR being Sadar P.S. Case No. 399 of 2022 was registered on the directions of the Ld. Court of Chief Judicial Magistrate, Ranchi in Complaint Case No. 3111 of 2021 passed vide order dated 28.06.2022. A complaint case was also filed by Umesh Kumar Gope against Rajesh Rai, Imtiaz Ahmad, Bharat Prasad, Lakhan Singh, Punit Bhargav and Bishnu Kumar Agarwal for fraudulently acquiring one acre of land situated at Cheshire Home Road, Plot No 28, Khata No. 37, Mouza Gari, Ranchi, Jharkhand.
4. The allegations in the first information report being Sadar PS Case no. 399 of 2022 are briefly as follows:
(i) The FIR alleged that Rajesh Rai illegally and fraudulently made a Power of Attorney in the name of Imtiaz Ahmad and Bharat Prasad on the strength of the said Power of Attorney they prepared 3 B.A. No.9863/2023 a forged sale deed and sold the above-mentioned parcel of land admeasuring 1 acre to Punit Bhargav for an amount of Rs.1,78,55,800/-.
(ii) Puneet Bhargav further sold the said land to Bishnu Kumar Agarwal through two Sale Deeds for a total amount of Rs.1,80,00,000/- (Two Sale deeds dated 01.04.2021 for an amount Rs.1,02,60,000/- and Rs.77,40,000/-).
5. The investigation further revealed that though the consideration amount in the deed between Imtiaz Ahmed, Bharat Prasad and Puneet Bhargav is shown as Rs.1,78,55,800/-, only an amount of Rs.25,00,000 was paid from the account of Shiva Fabcons one proprietorship firm of Punit Bhargava into the account of Rajesh Rai on 12.02.2021. Investigation further reveals that out of the said 25 lakhs an amount of Rs.18,00,000/- was immediately transferred to the Bank account of Green Traders, a partnership firm under the control of Md. Saddam Hussain.
6. Further during the investigation, Surveys were conducted on 09.02.2023 and 15.02.2023 At the Circle Office, Bargain, Ranchi, and office of Registrar of assurances Kolkata respectively and original register II/volumes containing the above entry were inspected falsification of the original records were identified and the custody of original registers were taken. After obtaining new permission the original registers were sent for examination by an expert to Directorate of Forensic Science, Handwriting and Forensic Bureau, Gandhinagar which confirmed the forgery and tampering in 4 B.A. No.9863/2023 the above stated registers. Investigation thus revealed that the accused persons namely Afsar Ali, Md. Saddam Hussain, Imtiaz Ahmed, Bishnu Kumar Agarwal, Chhavi Ranjan, Rajesh Rai, Lakhan Singh, Bharat Prasad and the present petitioner i.e. Prem Prakash are habitual offenders and they are involved in mass forgery. Further, during course of investigation three immovable properties Have been provisionally attached vide order dated 31.08.2023.
7. Based on the above, the Directorate of Enforcement registered ECIR Case No. 05 of 2023 in ECIR / RNZO / 10 / 2023 dated 07.03.2023 and the Prosecution Complaint was filed on 01.09.2023.
8. Meanwhile, the present petitioner was taken into custody on 11.08.2023, accordingly, he, preferred Miscellaneous Criminal Application (MCA No. 2810 of 2023) but the same was rejected on 20.09.2023, hence, the instant bail application. Argument on behalf of the learned counsel for the petitioner
9. Mr. Indrajit Sinha, learned counsel appearing for the petitioner has taken the following grounds that: -
(i) Even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002.
(ii) The allegation against the petitioner is that he, being the influential person, has cooperated in the illegal transfer of the land pertaining to the land in question, i.e., measuring 1 acre at Cheshire Home Road, Plot No.28, Khata No.37, Mouza Gari, Ranchi, Jharkhand, save and except the said allegation, there is no 5 B.A. No.9863/2023 allegation against the petitioner.
(iii) The ECIR has been directed to be initiated by proceeding of issuance of summon against the petitioner. The Prevention of Money Laundering Act, 2002, is based upon the case instituted in the District of Ranchi, being Sadar P.S. Case No.399 of 2022 and thereafter, another case has been instituted at Kolkata in Hare Street P.S. Case No. 137 of 2023 dated 10.05.2023 under Section 120B, 465, 467, 468 & 471 while, the ECIR is dated 07.03.2023, in which, the allegation of commission of fabrication of document pertaining to the land in question pertains to FIR being Sadar P.S. Case No.399 of 2022 which is dated 08.09.2022 and in the said criminal case, there is no allegation of commission of any forgery in the document, as the subject matter of the ECIR, rather, the issue of forgery in the registered deed is the subject matter of the F.I.R .being Hare Street P.S. Case No. 137 of 2023 which was instituted on 10.05.2023, as such, the subject matter of the ECIR cannot be said to be based upon the material collected by instituting a criminal case subsequent to institution of the ECIR, hence, the entire prosecution version itself is false.
(iv) It has been contended that even accepting the material collected in course of inquiry based upon which the ECIR has submitted before the competent court of criminal jurisdiction which pertains to forgery in making the document for the purpose of illegal transfer of the land which is Khasmahal Land and in that view of the matter, if once the land registered under the provision of Transfer of 6 B.A. No.9863/2023 Property Act by taking aid of the Indian Registration Act, remedy available for registration or cancellation of the said deed which is under Section 82 & 83 of Registration Act, therefore, it is not a case where commission of any criminality is being alleged.
(v) The statement of the co-accused persons, namely, Saddam Hussain, Afshar Ali, Imtiaz Ahmed have also been referred, wherefrom, it is evident in order to make out a case that the transaction in lieu of the illegal transfer of land is nowhere related with the petitioner, rather, the land has been transferred by another person in favour of the person, namely, Puneet Bhargav who had paid the consideration amount and said Puneet Bhargav subsequently transferred it to Bishnu Kumar Agarwala but without taking into consideration the aforesaid fact, the petitioner has been implicated in the instant case.
(vi) The aid of Section 50 of the P.M.L. Act has been taken which provides the jurisdiction to the authorities and as per which, since the complaint of ECIR, is based upon the criminal case instituted at Kolkata, hence, the authorities sitting in the State of Jharkhand, will have no jurisdiction to initiate an inquiry by issuance of summon the Act, 2002.
(vii) The ground of mens rea has also been taken by making reference that there was no intention of the petitioner to commit an offence said to attract the money laundering.
(viii) The ground of parity has also been taken, since, once Bishnu Kumar Agarwala has been granted bail by the coordinate 7 B.A. No.9863/2023 bench of this Court vide order dated 12.01.2024 passed in B.A. No.10166 of 2023.
According to the petitioner, the case of the said Bishnu Kumar Agarwala is exactly similar to that of the present petitioner and hence, applying the principle of parity, the petitioner of the present case is also fit to be released on bail.
(ix) The reliance of some of the paragraphs of the judgment of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., reported in (2022) SCC OnLine SC 929 has been made as under paragraphs-235, 239, 243, 252, 253, 388, 400 and 401.
The purpose for putting reliance upon these paragraphs are that the very object and intent of the P.M.L. Act is that the twin conditions are to be fulfilled which is to be considered at the time of grant of bail from the angle as to whether the accused was possessed the requisite mens rea.
Herein, if the entire ECIR will be taken into consideration, there is no mens rea and in that view of the matter, it is a fit case for grant of bail.
(x) The reliance has also been placed upon the judgment rendered in the case of Manish Sisodia Vrs. Central Bureau of Investigation, reported in 2023 SCC OnLine SC 1393 by referring the paragraphs-27 and 29, wherein, it has been held by the Hon'ble Apex Court that as per the provision of Section 436-A, it should not be construed as a mandate that an accused should not be granted bail under P.M.L. Act till he has suffered incarceration for the 8 B.A. No.9863/2023 specified period.
(xi) It has been submitted that the petitioner in the present case is in custody since 11.08.2023 and as such, taking into consideration the involvement of the petitioner even it will be considered from the ECIR, there is no ingredient of commission of any predicate offence of the schedule offence and as such, the petitioner may be granted the privilege of bail. Argument on behalf of the learned counsel for the respondent/Directorate of Enforcement
10. Per contra, Mr. Anil Kumar, learned Addl. S.G.I. has vehemently opposed the prayer for bail by taking the ground that it is incorrect on the part of the petitioner that he is innocent and having no connection with the commission of crime, rather, it has come in course of recording the statement under Section 50 of the P.M.L. Act of the petitioner as also the other persons who have been summoned that everything has been found to be managed by the petitioner having the political clout.
11. Further, it has come in the ECIR that the petitioner is the beneficial owner of the firm in the name and style of Jamni Enterprises.
12. The contention has been made that the P.M.L. Act is also to attract against the beneficial owner, in view of the provision of Section 2(fa) of the P.M.L. Act, 2002.
13. The ground has been taken, in response that the inquiry which has been initiated herein which culminated into ECIR, cannot be 9 B.A. No.9863/2023 based upon the subsequent FIR which was instituted on 10.05.2023 being Hare Street P.S. Case No. 137 of 2023, by making submission that in Sadar P.S. Case No.399 of 2022 dated 08.09.2022, the investigation is still going on and in course thereof, when it was detected in the aforesaid Sadar P.S. Case No.399 of 2022 of illegal transfer of land based upon the forged documents, then on investigation of the said case, when the Police has conducted an investigation, then it was found that the documents pertaining to the land in question has been fabricated by commission of forgery and in consequence thereof, an FIR was instituted being Hare Street P.S. Case No.137 of 2023, therefore, the inquiry which is the subject matter of the present criminal prosecution, is based upon the allegation, as available in Sadar P.S. Case No.399 of 2022.
14. The land since is situated in the territorial jurisdiction of the State of Jharkhand, hence, the authority as defined under Section 49/51 of the P.M.L. Act, 2002 having jurisdiction to initiate a proceeding in case of any predicate/schedule offence within the territory of the State of Jharkhand is competent enough to initiate inquiry and accordingly, the inquiry has been initiated by Assistant Director of the Directorate of Enforcement.
15. So far, the contention as has been raised that all the scheduled offences cannot be said to be attracted under the P.M.L. Act is concerned, as has been aggrieved on behalf of the petitioner, the same at this stage, cannot be looked into, rather, the same is to be looked into at the stage of trial.
10 B.A. No.9863/2023
16. The issue of jurisdiction is also to be looked into, which is also the factual aspect to be looked into at the time of trial, as has been held by the Hon'ble Apex Court in the case of Rana Ayyub Vrs. Directorate of Enforcement Through its Assistant Director, reported in (2023) 4 SCC 357, upon which, the reliance has been placed by the learned Addl. S.G.I.
17. So far as the ground of parity is concerned, it has been submitted that the parity is to be tested on the basis of the factual aspect and involvement of one or the other accused person.
18. Herein, although the order passed by the coordinate bench in Bishnu Kumar Agarwala granting him bail, has already been challenged before the Hon'ble Apex Court but even, in response to the said submission, the fact herein is that Bishnu Kumar Agarwala was granted bail merely on the ground that he was purchaser of the property but herein the allegation against the petitioner is that he has monitored everything right from managing the higher authority, since, it has come in the inquiry that the land in question was having any vigilance issue since the land was the Khasmahal Land.
19. Further, it has also come in the inquiry that the fabricated document has been created on the behest of this petitioner. Further, the money has also received in one firm, namely, Jamni Enterprises of which he is the beneficial owner, therefore, on fact the petitioner is not entitled to get the advantage of parity on the basis of the order granting bail in favour of the Bishnu Kumar Agarwala. 11 B.A. No.9863/2023 Analysis
20. Heard the learned counsel for the parties and perused the documents available on record.
21. This Court before appreciating the argument advanced on behalf of the parties, deems it fit and proper to discuss herein some of the provision of law as contained under the PML Act, 2002 (Act 2002) with its object and intent as also the legal proposition as settled by the Hon'ble Apex Court in various judgments.
22. The Act 2002 was enacted to address the urgent need to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof including vesting of it in the Central Government, setting up of agencies and mechanisms for coordinating measures for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime.
23. The issues were debated threadbare in the United Nation Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basle Statement of Principles enunciated in 1989, the FATF established at the summit of seven major industrial nations held in Paris from 14th to 16th July, 1989, the Political Declaration and Noble Programme of Action adopted by United Nations General Assembly vide its Resolution No. S-17/2 of 23.2.1990, the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998, urging the 12 B.A. No.9863/2023 State parties to enact a comprehensive legislation. This is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act. The same reads thus:
"INTRODUCTION Money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. To obviate such threats international community has taken some initiatives. It has been felt that to prevent money-laundering and connected activities a comprehensive legislation is urgently needed. To achieve this objective the Prevention of Money-laundering Bill, 1998 was introduced in the Parliament. The Bill was referred to the Standing Committee on Finance, which presented its report on 4th March, 1999 to the Lok Sabha. The Central Government broadly accepted the recommendation of the Standing Committee and incorporated them in the said Bill along with some other desired changes."
STATEMENT OF OBJECTS AND REASONS "It is being realised, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threat are outlined below:--
(a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected activities and confiscation of proceeds derived from such offence.13 B.A. No.9863/2023
(b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money-laundering.
(c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money-laundering. The recommendations were classified under various heads. Some of the important heads are--
(i) declaration of laundering of monies carried through serious crimes a criminal offence;
(ii) to work out modalities of disclosure by financial institutions regarding reportable transactions;
(iii) confiscation of the proceeds of crime;
(iv) declaring money-laundering to be an extraditable offence;
and
(v) promoting international co-operation in investigation of money-laundering.
(d) the Political Declaration and Global Programme of Action adopted by United Nations General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia, calls upon the member States to develop mechanism to prevent financial institutions from being used for laundering of drug related money and enactment of legislation to prevent such laundering.
14 B.A. No.9863/2023
(e) the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998 has made another declaration regarding the need to combat money-laundering. India is a signatory to this declaration."
24. It is thus evident that the Act 2002 was enacted in order to answer the urgent requirement to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime.
25. It needs to refer herein the definition of "proceeds of crime" as provided under Section 2(1)(u) of the Act, 2002 which reads as under:
"2(u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property 3[or where such property is taken or held outside the country, then the property equivalent in value held within the country] 4[or abroad];
[Explanation.--For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;]"
26. It is evident from the aforesaid provision by which the "proceeds of crime" means any property derived or obtained, directly 15 B.A. No.9863/2023 or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad.
27. In the explanation, it has been referred that for the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence.
28. The aforesaid explanation has been inserted in the statute book by way of Act 23 of 2019.
29. It is, thus, evident that the reason for giving explanation under Section 2(1)(u) is by way of clarification to the effect that whether as per the substantive provision of Section 2(1)(u), the property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country but by way of explanation the proceeds of crime has been given broader implication by including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. 16 B.A. No.9863/2023
30. The "property" has been defined under Section 2(1)(v) which means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located.
31. The schedule has been defined under Section 2(1)(x) which means schedule to the Prevention of Money Laundering Act, 2002. The "scheduled offence" has been defined under Section 2(1)(y) which reads as under:
"2(y) "scheduled offence" means--
(i) the offences specified under Part A of the Schedule;
or
(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or
(iii) the offences specified under Part C of the Schedule."
32. It is evident that the "scheduled offence" means the offences specified under Part A of the Schedule; or the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or the offences specified under Part C of the Schedule.
33. The offence of money laundering has been defined under Section 3 of the Act, 2002 which reads as under:
"3. Offence of money-laundering.--Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected 17 B.A. No.9863/2023 with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering.
[Explanation.-- For the removal of doubts, it is hereby clarified that,--
(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:--
(a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property, in any manner whatsoever;
(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.]"
34. It is evident from the aforesaid provision that "offence of money-laundering" means whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.
35. It is further evident that the process or activity connected with proceeds of crime is a continuing activity and continues till such time 18 B.A. No.9863/2023 a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.
36. The punishment for money laundering has been provided under Section 4 of the Act, 2002.
37. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready reference, Section 50 of the Act, 2002 reads as under:
"50. Powers of authorities regarding summons, production of documents and to give evidence, etc.--(1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any officer of a [reporting entity] and examining him on oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing commissions for examination of witnesses and documents; and
(f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any 19 B.A. No.9863/2023 records during the course of any investigation or proceeding under this Act.
(3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.
(4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).
(5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-
section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act:
Provided that an Assistant Director or a Deputy Director shall not--
(a) impound any records without recording his reasons for so doing; or
(b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the [Joint Director]."
38. The various provisions of the Act, 2002 along with interpretation of the definition of "proceeds of crime" has been dealt with by the Hon'ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., reported in (2022) SCC OnLine SC 929 wherein the Bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court have decided the issue by taking into consideration the 20 B.A. No.9863/2023 object and intent of the Act, 2002. The definition of "proceeds of crime"
as under paragraph-251.
39. The interpretation of the condition which is to be fulfilled while arresting the person involved in the predicate offence has been made as would appear from paragraph-265. For ready reference, relevant paragraphs are being referred as under:
"265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression "including", which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provision (as also the Explanation) predicates that if a person is found to be directly or indirectly involved in any process or activity connected with the proceeds of crime must be held guilty of offence of money-laundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word "and" preceding the expression "projecting or claiming" therein. This Court in Pratap Singh v. State of Jharkhand, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that 21 B.A. No.9863/2023 the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created. In Apparel Export Promotion Council v. A.K. Chopra, the Court observed that domestic Courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. This view has been restated in Githa Hariharan, as also in People's Union for Civil Liberties, and National Legal Services Authority v. Union of India."
40. The implication of Section 50 has also been taken into consideration. Relevant paragraph, i.e., paragraphs-422, 424, 425, 431, 434 reads as under:
"422. The validity of this provision has been challenged on the ground of being violative of Articles 20(3) and 21 of the Constitution. For, it allows the authorised officer under the 2002 Act to summon any person and record his statement during the course of investigation. Further, the provision mandates that the person should disclose true and correct facts known to his personal knowledge in connection with the subject matter of investigation. The person is also obliged to sign the statement so given with the threat of being punished for the falsity or incorrectness thereof in terms of Section 63 of the 2002 Act. Before we proceed to analyse the matter further, it is apposite to reproduce Section 50 of the 2002 Act, as amended. -----:22 B.A. No.9863/2023
424. By this provision, the Director has been empowered to exercise the same powers as are vested in a civil Court under the 1908 Code while trying a suit in respect of matters specified in sub-section (1). This is in reference to Section 13 of the 2002 Act dealing with powers of Director to impose fine in respect of acts of commission and omission by the banking companies, financial institutions and intermediaries. From the setting in which Section 50 has been placed and the expanse of empowering the Director with same powers as are vested in a civil Court for the purposes of imposing fine under Section 13, is obviously very specific and not otherwise.
425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act.
We have already highlighted the width of expression "proceeding" in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce 23 B.A. No.9863/2023 documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of subsection (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself. This position is well-established. The Constitution Bench of this Court in M.P. Sharma had dealt with a similar challenge wherein warrants to obtain documents required for investigation were issued by the Magistrate being violative of Article 20(3) of the Constitution. This Court opined that the guarantee in Article 20(3) is against "testimonial compulsion" and is not limited to oral evidence. Not only that, it gets triggered if the person is compelled to be a witness against himself, which may not happen merely because of issuance of summons for giving oral evidence or producing documents. Further, to be a witness is nothing more than to furnish evidence and such evidence can be furnished by different modes. The Court went on to observe as follows:
"Broadly stated the guarantee in article 20(3) is against "testimonial compulsion". It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as 24 B.A. No.9863/2023 stated in certain American decisions. The phrase used in Article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal 25 B.A. No.9863/2023 course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case."
(emphasis supplied)
431. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money-laundering. If the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the 26 B.A. No.9863/2023 purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence.
434. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government."
27 B.A. No.9863/2023
41. It is evident from the observation so made as above that the purposes and objects of the 2002 Act for which it has been enacted, is not limited to punishment for offence of money-laundering, but also to provide measures for prevention of money-laundering. It is also to provide for attachment of proceeds of crime, which are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceeding relating to confiscation of such proceeds under the 2002 Act. This Act is also to compel the banking companies, financial institutions and intermediaries to maintain records of the transactions, to furnish information of such transactions within the prescribed time in terms of Chapter IV of the 2002 Act.
42. The predicate offence has been considered in the aforesaid judgment wherein by taking into consideration the explanation as inserted by way of Act 23 of 2019 under the definition of the "proceeds of crime" as contained under Section 2(1)(u), whereby and whereunder, it has been clarified for the purpose of removal of doubts that, the "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence, meaning thereby, the words "any property which may directly or indirectly be derived or obtained as a result of any criminal activity 28 B.A. No.9863/2023 relatable to the scheduled offence" will come under the fold of the proceeds of crime.
43. So far as the purport of Section 45(1)(i)(ii) is concerned, the aforesaid provision starts from the non-obstante clause that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence under this Act shall be released on bail or on his own bond unless -
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail Sub-section (2) thereof puts limitation on granting bail specific in sub-section (1) in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.
The explanation is also there as under sub-section (2) thereof which is for the purpose of removal of doubts, a clarification has been inserted that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary 29 B.A. No.9863/2023 contained in the Code of Criminal Procedure, 1973, and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.
44. The fact about the implication of Section 45 has been interpreted by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) at paragraphs-371 to 374. For ready reference, the said paragraphs are being referred as under:
"371. The relevant provisions regarding bail in the 2002 Act can be traced to Sections 44(2), 45 and 46 in Chapter VII concerning the offence under this Act. The principal grievance is about the twin conditions specified in Section 45 of the 2002 Act. Before we elaborate further, it would be apposite to reproduce Section 45, as amended. The same reads thus:
"45. Offences to be cognizable and non-bailable.--(1) [Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless']
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: 30 B.A. No.9863/2023
Provided that a person who is under the age of sixteen years, or is a woman or is sick or infirm, [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by--
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.
[(1A) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [***] sub- section (1) is in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. [Explanation.--For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non- bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the 31 B.A. No.9863/2023 Criminal Procedure Code, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.]"
372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub- section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are:
(i) that there are reasonable grounds for believing that he is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail.
373. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur.
374. The first issue to be answered by us is: whether the twin conditions, in law, continued to remain on the statute book post decision of this Court in Nikesh Tarachand Shah and if yes, in view of the amendment effected to Section 45(1) of the 2002 Act vide Act 13 of 32 B.A. No.9863/2023 2018, the declaration by this Court will be of no consequence. This argument need not detain us for long. We say so because the observation in State of Manipur in paragraph 29 of the judgment that owing to the declaration by a Court that the statute is unconstitutional obliterates the statute entirely as though it had never been passed, is contextual. In this case, the Court was dealing with the efficacy of the repealing Act. While doing so, the Court had adverted to the repealing Act and made the stated observation in the context of lack of legislative power. In the process of reasoning, it did advert to the exposition in Behram Khurshid Pesikaka and Deep Chand7 including American jurisprudence expounded in Cooley on Constitutional Limitations and Norton v. Shelby County."
45. Subsequently, the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, (2023) SCC OnLine SC 1486 by taking into consideration the law laid down by the Larger Bench of the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra), it has been laid down that since the conditions specified under Section 45 are mandatory, they need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.
46. It has further been observed that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in 33 B.A. No.9863/2023 any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. For ready reference, paragraph-17 of the said judgment reads as under:
"17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act."34 B.A. No.9863/2023
47. The Hon'ble Apex Court in the said judgment has further laid down that the twin conditions as to fulfil the requirement of Section 45 of the Act, 2002 before granting the benefit of bail is to be adhered to which has been dealt with by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) wherein it has been observed that the accused is not guilty of the offence and is not likely to commit any offence while on bail.
48. In the judgment rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) as under paragraph-284, it has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to believe, which is required to be recorded in writing that the person is in possession of "proceeds of crime". Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process.
49. The Hon'ble Apex Court in the case of Gautam Kundu vs. Directorate of Enforcement (Prevention of Money-Laundering Act), Government of India through Manoj Kumar, Assistant Director, Eastern Region, reported in (2015) 16 SCC 1 has been 35 B.A. No.9863/2023 pleased to hold at paragraph -30 that the conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act.
50. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the petitioner. For ready reference, paragraph-30 of the said judgment reads as under:
"30. The conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have 36 B.A. No.9863/2023 overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money- laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant."
51. The Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra) has again reiterated the implication of Sections 45 and the principle of parity at paragraphs-17 and 18. The issue of parity has been considered by the Hon'ble Apex Court at paragraph-18 by making observation therein that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. For ready reference, paragraph- 18 read as under:
".18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under 37 B.A. No.9863/2023 consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/operator/controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court."
52. The Hon'ble Apex Court recently in the case of Gurwinder Singh Vs. State of Punjab and Anr., reported in (2024) SCC OnLine SC 109, has observed that the conventional idea in bail 38 B.A. No.9863/2023 jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. For ready reference, relevant paragraph of the said judgment is being referred as under:
"28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' - suggests the intention of the Legislature to make bail, the exception and jail, the rule."
53. The reason for making reference of this judgment is that in the Satender Kumar Antil vs. CBI and Anr., the UAPA has also been brought under the purview of category 'c' wherein while laying observing that in the UAPA Act, it comes under the category 'c' which also includes money laundering offence wherein the bail has been directed to be granted if the investigation is complete but the Hon'ble Apex Court in Gurwinder Singh vs. State of Punjab and Anr. 39 B.A. No.9863/2023 (supra) has taken the view by making note that the penal offences as enshrined under the provision of UAPA are also under category 'c' making reference that jail is the rule and bail is the exception.
54. Now coming to the grounds as has been raised on behalf of the learned counsel for the petitioner that even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002. Further ground has been taken the allegation against the petitioner is that the petitioner, being the influential person, has cooperated in the illegal transfer of the land pertaining to the land in question, save and except the said allegation, there is no allegation against the petitioner.
55. The learned counsel for the petitioner has also taken the ground that in the prosecution complaint, the statement of the co- accused persons, namely, Saddam Hussain, Afshar Ali, Imtiaz Ahmed have also been referred, wherefrom, it is evident that the transaction in lieu of the illegal transfer of land is nowhere related with the petitioner, rather, the land has been transferred by another person in favour of the person, namely, Puneet Bhargav who had paid the consideration amount and said Puneet Bhargav subsequently transferred it to Bishnu Kumar Agarwala but without taking into consideration the aforesaid fact, the petitioner has been implicated in the instant case.
56. In the context of aforesaid argument, it is pertinent to mention here that at this juncture this court thinks fit to discuss the word 40 B.A. No.9863/2023 "reason to believe" as provided under Section 19(1) or the twin condition as available under Section 45 of the Act is concerned,in order to come to the conclusion as to whether the condition stipulated in these sections have been followed or not, is required to consider the various paragraphs of the prosecution complaint dated 01.09.2023 as submitted by the Enforcement Directorate. For ready reference, the relevant paragraph of the same is being reproduced as under:
"Brief facts of the offence/ Allegation/
Charge/Amount Involved under PMLA
3.1 An FIR bearing no. 399 of 2022, dated
08.09.2022 (RUD No. 3) was registered by Sadar Police Station, Ranchi, Jharkhand under section sections 406, 420, 467, 468, 447, 504, 506, 341, 323 & 34 of Indian Penal Code 1860. The FIR was registered on the directions of the Ld. Court of Chief Judicial Magistrate, Ranchi in complaint case no. 3111 of 2021 passed by order dated 28.06.2022. A complaint case was filed by Umesh Kumar Gope against Rajesh Rai, Imtiyaz Ahmad, Bharat Prasad, Lakhan Singh, Punit Bhargav and Bishnu Kumar Agarwal for fraudulently acquiring one acre of land situated at Plot no. 28, Khata No. 37, situated at village Gari, Cheshire Home Road, PS Sadar, Ranchi. 3.2 The FIR alleged that Rajesh Rai, S/o Jagdish Rai, illegally and fraudulently made a power of attorney in the name of Imtiyaz Ahmed and Bharat Prasad. On 41 B.A. No.9863/2023 the strength of the said power of attorney, they prepared a forged sale deed and sold the above-mentioned parcel of land admeasuring 1 acres to Punit Bhargav for an amount of Rs. 1,78,55,800/-. Punit Bhargava further sold the said land to Bishnu Kumar Agarwal, vide two sale deeds for the total amount of Rs. 1,80,00,000/- (Vide two sale deeds, both dated 01.04.2021, for an amount of Rs. 1,02,60,000/- and Rs. 77,40,000/-).
3.5 Investigation reveals that Rajesh Rai in connivance with Bharat Prasad, Md. Saddam Hussain, Afshar Ali, Imtiaz Ahmed and others prepared one forged deed of 1948 was prepared by the accused persons and on the basis of that a power of attorney was given in favour of Imtiaz Ahmed and Bharat Prasad. The other accomplice namely Lakhan Singh became the confirming party in the deed and they executed sale deed dated 06.02.2021 {RUD No. 3 (i)} in favour of Punit Bhargava for an amount of Rs. 1,78,55,800/- which was registered as document no. 2021/RAN/1016/BK1/906 in book no. BK1, Vol. no. 112 from page no.369 to 506 at the office of SRO, Ranchi.
3.6 Punit Bhargava further sold the said land to Bishnu Kumar Agarwal vide two sale deeds, both dated 01.04.2021, registered as document no.
2021/RAN/2784/BK1/2483 in book no. BK1, Vol. no. 316 42 B.A. No.9863/2023 from page no. 405 to 532 at the office of SRO, Ranchi (for an amount of Rs. 1,02,60,000/-) and document no. 2021/RAN/2783/BK1/2482 in book no. BK1, Vol. no. 316 from page no. 261 to 404 at the office of SRO, Ranchi (for an amount of Rs. 77,40,000).
Brief detail of person examined under section 50(2) & 3 of PMLA 8.12 Afshar Ali -
The accused Afshar Ali is a habitual offender who has manufactured several fake deeds and is one of the masterminds behind the activities of falsification of government records and planting fake deeds in the records of Registrar of Assurances, Kolkata. He was arrested on 14.04.2023 after searches were conducted at his residential premises on 13.04.2023. At present, he is in Judicial custody. In his statement dated 17.04.2023, (RUD No 33) he stated that he was aware of the fact that the one acre of land situated at Plot no. 28, Khata no. 37, Village Gari, Cheshire Home Road, Ranchi was part of ten acres of land which was acquired by Birlas and later sold to Kanodias. Out of these ten acres, the above said one acre of land was unsold. Further, out of the ten acres of land, a plot of 3.51 acres was initially sold to one Gangadhar Rai, and as such, he made a fake deed wherein the said one acre of land was sold by 43 B.A. No.9863/2023 Gangadhar Rai to Jagdish Rai, father of Rajesh Rai. He also made one more claimant of this land i.e., to Lakhan Singh by showing that the Kanodias had sold this one acre of land to Kaliram Singh, father of Lakhan Singh, Later, he made Rajesh Rai a seller and Lakhan a confirming party in the deed by which the property was sold to Punit Bhargava, on behalf of Prem Prakash. Afshar Ali also stated that he took the help of his associate Bipin Singh to insert the name of Jagdish Rai in the records of Circle Office. For this, he paid Bipin Singh a sum of rupees fifteen lacs as a bribe to the officials of Circle Office, Baragai, Ranchi and as his commission. Later, he came to know that the land was under vigilance by the police as this land had certain disputes. Later, he met with Prem Prakash with one of his associates and Prem Prakash was informed about the dispute and the vigilance of the police. He further stated that Prem Prakash took the stock of the status of the land arid called the then D.C, Chhavi Ranjan and told him that the registry of the above stated Cheshire Home property was to be done after removing the vigilance observed by the police. After this, the consideration amount of Rs. 1.5 crores was fixed by Prem Prakash for this land. Afshar Ali accepted the offer as he was made to understand 44 B.A. No.9863/2023 that Prem Prakash was a very influential person who could be very useful in any kind of work in Jharkhand. Afshar Ali further stated that he accepted the consideration amount and further requested Prem Prakash to arrange for unblocking two plots of land, plot no. 891 and 893 measuring 1 acre 32 decimals (approx.) which were blocked from the D.C office. The said plots were part of a property admeasuring 3.81 acres of which fake deeds were prepared by Afshar Ali. Afshar Ali further stated that after talking to Chhavi Ranjan over this issue, Prem Prakash demanded Rs. 1 crore for the above work. The said amount of Rs. 1 crore was adjusted in the above said consideration amount of Rs. 1.5 crores. Later on, the said two blocks were unblocked but the other plot no. 903 was blocked by the D.C office which was beyond their understanding and the reason of the same was not known to him. He further stated that he came in contact with Prem Prakash and one of his associates Rajdeep Kumar used to act as a mediator between these two persons. Prem Prakash asked him to do the registry of the said one acre land situated at Cheshire Home Road in the name of his associate Punit Bhargava. Further he has stated that owing to the ill-health of Rajesh Rai, 45 B.A. No.9863/2023 the power of attorney was given to Bharat Prasad and Imtiaz Ahmed and subsequently as asked by Prem Prakash, the land was registered in the name of Punit Bhargava and Lakhan Singh was shown as the confirming party over the said piece of land. Moreover, he has stated that they were paid Rs.25 lacs directly into the bank accounts and they were assured to be paid the remaining amount of Rs. 25 lacs in cash. Rest of the amount of Rs. 1 crore was adjusted for unblocking the aforementioned blocked piece of plot in land measuring 3.81 acres.
Further in his statement, he has stated that while the transactions were being finalized with Prem Prakash, he had further fixed the deal of this land with Bishnu Kumar Agarwal. Bishnu Kumar Agarwal had knowledge about the disputes involved in this land for which he first asked Prem Prakash to fence the abovesaid one acres of land with boundary walls. For this, first the land was fenced with aluminum sheets and later, wick walls were constructed inside.
8.16 Punit Bhargava-
The statement of Punit Bhargava was recorded in ECIR: RNZO/18/2022 on 09.12.2022 (RUD No 45). In his statement, he stated that he knows Bishnu Agarwal since march 2021 when on the directions of 46 B.A. No.9863/2023 Prem Prakash, he sold one acre of land to Bishnu Kumar Agarwal. He further stated that he had bought this piece of land under the supervision of Prem Prakash. He further stated that on the instructions of Prem Prakash, he acquired a land in his name and accordingly on his instructions, he sold it to Bishnu Kumar Agarwal. He further stated that he has not much knowledge about Rajesh Rai, the purported owner of the property. On the directions of Prem Prakash, he gave Rs. 25 lacs to Rajesh Rai through cheque after which the registration and the mutation of the property was done in his name. He further stated that six postdated cheques were given for encashing the balance amount later.
On being asked as to why the rest of the payment was not made even after the registration and mutation was done in his name, he could not answer it and stated that Prem Prakash could give a reply in this regard. He was further asked what was the reason for purchasing this property in his name when it was sold within two months to Bishnu Agarwal, on this, he stated that it was only done on the instructions of Prem Prakash.
8.23 Prem Prakash In his statement dated 04.08.2023 (RUD No.41) 47 B.A. No.9863/2023 recorded in judicial custody at Birsa Munda Central Jail, Hotwar, Ranchi, he stated that he knows Bishnu Kumar Agarwal as a businessman and sometimes, he has met him during marriage events. He further stated that Punit Bhargava is like his younger brother and he is from his native place, so he knows him since childhood. From his statement dated 03.08.2023, (RUD No.40) it reveals those three persons including Afshar Ali used to visit him for the Cheshire Home Road property. He introduced them with Rajdeep Kumar and got the property verified. After some time, with the consent of Punit Bhargava, he got the property registered in the name of Punit Bhargava and later this property was sold to Bishnu Kumar Agarwal at a consideration price of Rs. 1.78 crores. His statement also reveals that Rajdeep used to visit Chhavi Ranjan on his instructions for the landed properties. However, in his statement dated 15.08.2023, he started concealing facts regarding meeting between Afshar Ali, Md. Saddam Hussain and others with Chhavi Ranjan.
It may be mentioned that Rajdeep is a person who worked under Prem Prakash as his employee and had visited the office of the accused Chhavi Ranjan on directions of Prem Prakash with the accused persons Afshar Ali and Md. Saddam Hussain. This fact has also 48 B.A. No.9863/2023 been admitted by Rajdeep Kumar in his statement under section 50 of PMLA, 2002 recorded on 24.04.2023. (RUD No. 76) Further, several calls have also been identified to have taken place during the scrutiny of the CDR which have also been mentioned below in the relevant para.
Brief summary of result of investigation under PMLA 9.1 The investigations under the provisions of PMLA, 2002 in FIR no. 399/2022 dated 08.09.2022 revealed that there is organized group of persons who are habitually involved in making fake deeds and falsifying original land records at Circle Offices and Registrar of Assurances, Kolkata and with the help of said fake deeds, acquire and dispose properties in fraudulent manner.
9.2 Investigation reveals that such forgery is widespread and certain government officials are part of the said conspiracy. Various influential persons like Bishnu Kumar Agarwal, Prem Prakash and others in connivance with senior government officials like Chhavi Ranjan are involved in acquisition of landed properties in Ranchi. 9.3 Investigation has revealed that Bishnu Kumar Agarwal has been assisted by Prem Prakash, Chhavi Ranjan and others in acquiring proceeds of 49 B.A. No.9863/2023 crime in the form of landed properties the details of which are given below-
9.4 The FIR alleged that Rajesh Rai, S/o Jagdish Rai, illegally and fraudulently made a power of attorney in the name of Imtiyaz Ahmed and Bharat Prasad. On the strength of the said power of attorney, they prepared a forged sale deed and sold the above-mentioned parcel of land measuring 1 acres to Punit Bhargav for an amount of Rs. 1,78,55,800/-. Punit Bhargava further sold the said land to Bishnu Kumar Agarwal, vide two sale deeds for the total amount of Rs. 1,80,00,000/-. (Vide two sale deeds, both dated 01.04.2021, for an amount of Rs. 1,02,60,000/- and Rs. 77,40,000/-).
9.5 Thus, the FIR stated that the land admeasuring 1 acres, situated at Gari, Cheshire Home Road, PS Sadar, Ranchi was acquired in a fraudulent manner by the above persons who indulged in fabricating documents and forging records, on the basis of which a power of attorney was fraudulently executed and subsequently the land was transferred to Punit Bhargava, who Immediately sold this land to Bishnu Agarwal, a businessman having interests in several avenues including real estate business.
9.6 Investigation reveals that Rajesh Rai in connivance with Bharat Prasad, Md. Saddam Hussain, 50 B.A. No.9863/2023 Afshar Ali, Imtiaz Ahmed and others prepared one forged deed of 1948 was prepared by the accused persons and on the basis of that a power of attorney was given in favour of Imtiaz Ahmed and Bharat Prasad. The other accomplice namely Lakhan Singh became the confirming party in the deed and they executed sale deed dated 06.02.2021 in favour of Punit Bhargava for an amount of Rs. 1,78,55,800/- which was registered as document no. 2021/RAN/1016/BK1/906 in book no. BK1, Vol. no. 112 from page no. 369 to 506 at the office of SRO, Ranchi. 9.7 Punit Bhargava further sold the said land to Bishnu Kumar Agarwal vide two sale deeds, both dated 01.04.2021, registered as document no.
2021/RAN/2784/BK1/2483 in book no. BK1, Vol. no. 316 from page no. 405 to 532 at the office of SRO, Ranchi (for an amount of Rs. 1,02,60,000/-) and document no. 2021/RAN/2783/BK1/2482 in book no. BK1, Vol. no. 316 from page no. 261 to 404 at the office of SRO, Ranchi (for an amount of Rs. 77,40,000).
9.8 Investigation further reveals that though the consideration amount in the deed between Imtiaz Ahmed and Bharat Prasad and Punit Bhargava is shown as Rs. 1,78,55,800/-, but only an amount of Rs. 25 lacs have been paid from the Bank of Baroda account of Shiva Fabcons, (account no.52580200000085) one of the 51 B.A. No.9863/2023 proprietorship firms of Punit Bhargava into the SBI Account no. 31180122501 of Rajesh Rai on 12.02.2021. Further Investigation reveals that out of the said amount of Rs. 25 lacs, an amount of Rs. 18 lacs were immediately transferred to the bank account of Green Traders, a partnership firm under the control of Md. Saddam Hussain (one of the accused arrested by this office on 14.04.2023 and presently languishing in Judicial Custody).
9.9 During investigation, surveys were conducted on 09.02.2023 (RUD No. 06) at the Circle office, Bargai, Ranchi and on 15.02.2023 (RUD No. 07) at the office of Registrar of Assurances (Records), Kolkata under section 16 of PMLA, 2002 and the original register II/volumes, containing the above entry were inspected and falsification of the original records were identified in the above documents. The custody of the original registers was taken from the Circle Office as well as from the Registrar of Assurances, Kolkata after the permission of Hon'ble PMIA Court Ranchi under section 91 of Cr.PC. After obtaining due permission, the said original register was sent for by an expert to Directorate of Forensic Science, Handwriting and Forensic Bureau, Gandhinagar. The Directorate of Forensic Science has confirmed the forgery and tempering in the above stated 52 B.A. No.9863/2023 registers.
9.10 During further investigation, it revealed that the accused persons namely Afshar All, Md. Saddam Hussain, Imtiaz Ahmed, Bishnu Kumar Agarwal, Chhavi Ranjan, Prem Prakash, Rajesh Rai, Lakhan Singh and Bharat Prasad are habitual offenders and they are involved in mass forgery. It is also established that Bishnu Kumar Agarwal has acquired other lands in frivolous manner with the help of government officials. 9.11 As stated above, investigation has established that the property situated at Khata no. 93, Plot no. 543, 544, 546 and 547, total area 9.30 acres acquired by Bishnu Kumar Agarwal was a government property (Khasmahal Land). And the said property has been acquired by the accused Bishnu Kumar Agarwal by influencing the government officials including the Ex-DC Chhavi Ranjan who helped him by suppressing and shelving all the official records and documents which established that the above property acquired by Bishnu Kumar Agarwal was a government property (Khasmahal Land). Further, this property has been in possession of Nazarat Hussain & his families without any grounds and has been in their occupation. Later, this land was taken on 53 B.A. No.9863/2023 lease by Ramchandra Mukherjee effective from the year 1985 and expired in the year 2014 after which, the lease of the above-stated was not renewed in name of any person. However, Bishnu Kumar Agarwal by concealing and suppressing the facts and by assistance of the accused Chhavi Ranjan and others purchased this Khasmahal land in illegal manner.
Brief facts of the FIR and the reasons of the ECIR 10.1.1 An FIR bearing no. 399 of 2022 dated 08.09.2022 (RUD No.03) was registered by Sadar Police Station, Ranchi, Jharkhand under section sections 406, 420, 467, 468, 447, 504, 506, 341, 323 & 34 of Indian Penal Code 1860. The FIR was registered on the directions of the Ld. Court of Chief Judicial Magistrate, Ranchi in complaint case no. 3111 of 2021 passed by order dated 28.06.2022 for fraudulently grabbing one land measuring 1 acre at Plot no. 28, Khata No. 37, situated at village Gari, Cheshire Home Road, PS Sadar, Ranchi.
10.1.2 Investigation reveals that Rajesh Rai, S/o Jagdish Rai, illegally and fraudulently gave a power of attorney in respect of the above-stated property to Imtiyaz Ahmed (one of the accused arrested on 14.04.2023 in case No ECIR/RNZO/18/2022 in matter of forgery in making fake deeds of property in possession 54 B.A. No.9863/2023 of the defence) and Bharat Prasad. Later, the above- stated persons namely Rajesh Rai, Bharat Prasad, Imtiaz Ahmed in connivance with other accomplices namely Afshar Ali, Lakhan Singh, Md. Saddam Hussain and others made a forged sale deed and sold the above- mentioned parcel of land admeasuring 1 acres to one person namely Punit Bhargav. Punit Bhargava is one of the close associates of Prem Prakash (also languishing in Judicial Custody in connection with illegal stone mining case).
10.1.3 Rajesh Rai in connivance with Bharat Prasad, Md. Saddam Hussain, Afshar Ali, Imtiaz Ahmed and others created forged deed 184 of 1948 (RUD No. 07) and on the basis of that, executed power of attorney in favour of Imtiaz Ahmed and Bharat Prasad. Further, one of their accomplices namely Lakhan Singh became the confirming party in the deed and they executed sale deed dated 06.02.2021 in favour of Punit Bhargava for an amount of Rs. 1,78,55,800/- which was registered as document no. 2021/RAN/1016/BK1/906 in book no. BK1, Vol. no. 112 from page no. 369 to 506 at the office of SRO, Ranchi.
10.1.4 Punit Bhargava further sold the said land to Bishnu Kumar Agarwal, another suspect of the ECIR, vide two sale deeds, both dated 01.04.2021, registered 55 B.A. No.9863/2023 as document no. 2021/RAN/2784/BK1/2483 in book no. BK1, Vol. no. 316 from page no. 405 to 532 at the office of SRO, Ranchi (for an amount of Rs. 1,02,60,000/-) and document no. 2021/RAN/2783/BK1/2482 in book no. BK1, Vol. no. 316 from page no. 261 to 404 at the office of SRO, Ranchi (for an amount of Rs. 77,40,000). (Part of RUD No. 03) 10.1.5 Thus, the land admeasuring 1 acres, situated at Gari, Cheshire Home Road, PS Sadar, Ranchi was acquired in a deceitful manner by the conspiracy and criminal activities of the above-stated persons who indulged into fabrication of documents and forging records.
101.6 During investigation at the office of the Registrar of Assurances, Kolkata, the forgery in the original records for obtaining the above-said property was observed by the officials of the Directorate of Enforcement as well as the officials of the Registrar of Assurances, Kolkata. Further, an FIR no. 137 of 2023 dated 10.05.2023 under section 120B, 465, 467, 468 and 471 of IPCP-M was also registered at Hare Street P.S, Kolkata on the report of the fact- finding committee of the Registrar of Assurances, Kolkata.
14 Specific Roles of the Accused persons in commission of offence of Money laundering 56 B.A. No.9863/2023 14.8 Prem Prakash, S/o Pramod Kumar Sinha (Accused no. 8) - The accused person was a party with the accused persons namely Afshar Ali @ Afsu Khan, Rajesh Rai, Lakhan Singh, Imtiaz Ahmed, Bharat Prasad, Punit Bhargava, Chhavi Ranjan and Bishnu Kumar Agarwal in acquisition of proceeds of crime in form of landed property admeasuring 1 acre situated at Plot no. 28, Khata no. 37, Village Gari, Cheshire Home Road, Ranchi initially in the name of Punit Bhargava and later assisting the accused person Bishnu Kumar Agarwal in its ultimate acquisition by fraudulent means. The accused being an accomplice of Bishnu Kumar Agarwal assisted him in acquiring the said one acre property by hatching a conspiracy and initially making Punit Bhargava as the owner of the said land. Later, this land was acquired by Bishnu Kumar Agarwal who is the ultimate beneficiary of the said land. Investigation reveals that Bishnu Kumar Agarwal paid Rs.
1,78,20,000/- to the accused Punit Bhargava in his firm Shiva Fabcons. The amount was paid into Bank of Baroda account 52580200000085 out of which, an amount of Rs. 1,01,57,400/- was transferred to the bank account of Jamini Enterprises, a firm whose beneficial owner is Prem Prakash.
Hence, the accused person Prem Prakash is involved in 57 B.A. No.9863/2023 the activities connected with the acquisition, possession, concealment, of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property. Thus, the accused person Prem Prakash has committed the offence of money laundering as defined under section 3 of PMLA, 2002 and is accordingly liable to punished under section 4 of MLA, 2002,."
57. It is evident from the prosecution complaint that the Prem Prakash exerted his influence in order to assist his accomplice Bishnu Kumar Agarwal in acquisition of the land situated at Cheshire Home Road measuring one acre. Further, investigation has revealed that he has close proximities with the accused persons namely Chhavi Ranjan, Bishnu Kumar Agarwal, Punit Bhargava and others as would evident from the statements as recorded under section 50 of the P.M.L. Act, 2002.
58. Record transpires that the accused petitioner was a party with the other co-accused persons namely Afsar Ali @ Afsu Khan and others in acquisition of proceeds of crime in form of landed property admeasuring 1 acre situated at Plot no. 28. Khata no. 37, village Gari Chesire Home Road, Ranchi in the name of Punit Bhargav and Investigation reveals that Bishnu Kumar Agrawal has paid Rs. 1,78,20,000/- to the accused Punit Bhargav in his firm Shiva Fabcons. The amount was paid into the Bank of Baroda account no. 52580200000085 out of which as amount of Rs. 1,01,57,400/- was transferred to the Bank account of Jamini Enterprises, a whose 58 B.A. No.9863/2023 beneficial owner is petitioner Prem Prakash.
59. Accused persons Afsar Ali and Saddam Hussain connived with Prem Prakash for fraudulent acquisition/registration of this property. Prem Prakash then registered this property in the name of his very close accomplice and confidant namely Punit Bhargava, co accused persons. The sale deed dated 06.02.2021 was executed in favour of Punit Bhargava for an amount of Rs. 1,78,55,800/- which was registered as document no. 2021/RAN/1016/BK1/906 in book no. BK1, Vol. no. 112 from page no. 369 to 506 the office of SRO, Ranchi.
60. The investigation further reveals that though the consideration amount in the deed between Imtiyaz Ahmed and Bharat Prasad and Punit Bhargava was shown as Rs. 1,78,55,800/-, but only an amount of Ra. 25 lacs was paid into the SBI Account no. 31100122501 of the dummy owner/accused Rajesh Rai on 12.02.2021.
61. It has come in the investigation on the instructions of the accused petitioner Prem Prakash, his accomplice Punit Bhargava further sold the said land to Bishnu Kumar Agarwal vide two sale deeds, both dated 01.04.2021, registered as document no. 2021/RAN/2784/BK1/2483 in book no. BK1, Vol. no. 316 from page no. 405 to 532 at the office of SRO, Ranchi for an amount of Rs. 1,02,60,000/-) and document no. 2021/RAN/2783/BK1/2482 in book no. BK1, Vol. no. 316 from page no. 261 to 404 at the office of SRO, Ranchi (for an amount of Rs. 77,40,000).
59 B.A. No.9863/2023
62. Punit Bhargav has admitted in his statement u/s 50 of the PMLA 2002 that he knows Bishnu Kumar Agarwal since March 2021 and on the direction of Prem Prakash, he sold 1 acre of land to Bishnu Kumar Agarwal. He further stated that he had purchased this piece of land under the supervision of Prem Prakash and on the direction of Prem Prakash, he had given Rs. 25 lacs to Rajesh Rai. He further stated that six postdated cheques were given for the balance amount later but the said cheques were not encashed. He has also stated that the reason for purchasing this property in his name was done on the instructions of Prem Prakash.
63. Thus, prima facie it appears that the present petitioner Prem Prakash and Punit Bhargav knowingly acquired the proceeds of crime and their knowledge about the forgery committed with respect to acquiring the above said property is evident from the fact that they acquired the property at a throw away price and that too without paying the consideration amount which was mentioned in the deed.
64. Punit Bhargav assisted by Prem Prakash and acquired the property in his name on instructions of Prem Prakash. The accused Prem Prakash mediated directly with the accused persons namely Afsar Ali, Md. Saddam Hussain and others and acquired property in the name of Punit Bhargav, out of an amount of Rs. 1.78 crores only 25 lacs were paid.
65. Thus, it would be evident from the material collected that the Prem Prakash and his associate Punit Bhargav both the persons are party to the activities connected with the proceeds of crime in form 60 B.A. No.9863/2023 of immoveable property Cheshire Home Road, Ranchi having deed value of Rs 1.80 crores including its acquisition, possession, concealment used and projecting and claiming the proceeds of crime as untainted property.
66. It is revealed that Prem Prakash has exerted his influence in order to assist his accomplice Bishnu Kumar Agrawal in acquisition of the land. The name of the accused also surfaced in facilitating Amit Kumar Agrawal acquiring property at M.S. Plot no. 557, Mauza Morabadi. Ranchi. The prosecution complaint has revealed that he has closed proximities with the accused persons namely Chhabi Ranjan and others.
67. Further, it has been submitted in the counter affidavit that the accused/petitioner Prem Prakash is an influential person with criminal antecedents as his active role also surfaced in another case of illegal mining for which he was arrested on 25.08.2022. During searches at his residence, 2 AK 47 assault Rifles were recovered which were in his illegal and unauthorized possession. Further it has come on record that the petitioner's name has also surfaced in the case of fraudulent acquisition of a Defence property at Morabadi, admeasuring 4.55 acres.
68. Thus, prima-facie it appears that the present petitioner being an accomplice of Bishnu Kumar Agarwal was knowingly a party to the illegal acquisition of the above stated one acre property with other co-accused including his accomplice and co accused Chhavi Ranjan and Bishnu Kumar Agarwal. Further, it appears from the 61 B.A. No.9863/2023 record that he also acquired Rs 1,78,20,000/- from the said Co accused Bishnu Kumar Agarwal through the firms of which he was the real beneficial owner and good amount of money was also transferred to the bank account of Jamin Enterprises, a firm whose beneficial owner is the present petitioner .
69. It is, thus, evident on the basis of the aforesaid material collected that prima-facie the involvement of the present petitioner in the alleged offence said to be committed under the provisions of the Act, 2002, cannot be denied.
70. The Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) as under paragraph-284, has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has "reason to believe", which is required to be recorded that the person is in possession of "proceeds of crime". Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process.
71. In the backdrop of the aforesaid discussion this court has "reason to believe" that prima-facie the involvement of the present petitioner is fully substantiated by the tangible and credible evidences which is indicative of involvement of the present petitioner 62 B.A. No.9863/2023 in activity connected with the proceeds of crime.
72. So far as the issue of grant of bail under Section 45 of the Act, 2002 is concerned, as has been referred hereinabove, at paragraph- 412 of the judgment rendered in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra), it has been held therein by making observation that whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or 439 for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering.
73. Therefore, the conditions enumerated in Section 45 of P.M.L.A. will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant.
74. As discussed above, the "offence of money-laundering"
means whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and 63 B.A. No.9863/2023 projecting or claiming it as untainted property shall be guilty of offence of money-laundering and the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.
75. Further, it is evident from the judicial pronouncement as discussed above that in order to constitute any property as proceeds of crime, it must be derived or obtained directly or indirectly by any person as a result of criminal activity relating to a scheduled offence. The explanation clarifies that the proceeds of crime include property, not only derived or obtained from scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. Clause (u) also clarifies that even the value of any such property will also be the proceeds of crime and in the instant case from perusal of paragraph of the prosecution complaint it is evident that the petitioner is not only involved rather his involvement is direct in procuring the proceeds of crime by way of connivance with the other accused persons.
76. Thus, on the basis of the discussion made hereinabove the contention of the learned counsel for the petitioner that even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of 64 B.A. No.9863/2023 the P.M.L. Act, 2002, is totally misplaced in the light of accusation as mention in prosecution complaint dated 01.09.2023.
77. Further, it is pertinent to mention here that a person accused of the offence of money Laundering need not to be accused in predicate offence and this position has been cleared in the judgement in the case of Vijay Madanlal Choudhary (supra) and others as well as in the case of Pavna Dibbur Vs. Directorate of Enforcement in Criminal Appeal No. 2779/2023, wherein, it is categorically held that the person accused of PMLA offence need not be an accused in scheduled offence.
78. Now coming to the issue of jurisdiction as raised by the learned counsel for the petitioner by making submission to that effect that since the complaint of ECIR, is based upon the criminal case instituted at Kolkata, hence, the authorities sitting in the State of Jharkhand, will have no jurisdiction to initiate an inquiry by issuance of summon the Act, 2002.
79. It is pertinent to mention here that the inquiry which has been initiated herein which culminated into ECIR, cannot be based upon the subsequent FIR which was instituted on 10.05.2023 being Hare Street P.S. Case No. 137 of 2023, and when it was detected in the Sadar P.S. Case No.399 of 2022 of illegal transfer of land based upon the forged documents, then on investigation of the said case, when the Police has conducted an investigation, then it was found that the documents pertaining to the land in question has been fabricated by commission of forgery and in consequence thereof, an 65 B.A. No.9863/2023 FIR was instituted being Hare Street P.S. Case No.137 of 2023 therefore, the inquiry which is the subject matter of the present criminal prosecution, is based upon the allegation, as available in Sadar P.S. Case No.399 of 2022.
80. Further, the land since is situated in the territorial jurisdiction of the State of Jharkhand, hence, the authority as defined under Section 49/51 of the P.M.L. Act, 2002 having jurisdiction to initiate a proceeding in case of any predicate/schedule offence within the territory of the State of Jharkhand is competent enough to initiate inquiry and accordingly, the inquiry has been initiated.
81. In the aforesaid context it is the considered view of this Court that the issue of jurisdiction is also the factual aspect which is to be looked into at the time of trial, as has been held by the Hon'ble Apex Court in the case of Rana Ayyub Vrs. Directorate of Enforcement Through its Assistant Director, reported in (2023) 4 SCC 357. The relevant paragraphs of the aforesaid judgment are being quoted as under:
"41. As we have pointed out earlier, the involvement of a person in any one or more of certain processes or activities connected with the proceeds of crime, constitutes the offence of money-laundering. These processes or activities include : (i) concealment; (ii) possession; (iii) acquisition; (iv) use; (v) projecting as untainted property; or (vi) claiming as untainted property.
43. In addition, the definition of the words "proceeds of crime" focuses on "deriving or obtaining a property" as a result of criminal activity relating to a scheduled offence.66 B.A. No.9863/2023
Therefore, the area in which the property is derived or obtained or even held or concealed, will be the area in which the offence of money-laundering is committed.
49. Therefore, we are of the view that the issue of territorial jurisdiction cannot be decided in a writ petition, especially when there is a serious factual dispute about the place/places of commission of the offence. Hence, this question should be raised by the petitioner before the Special Court, since an answer to the same would depend upon evidence as to the places where any one or more of the processes or activities mentioned in Section 3 were carried out. Therefore, giving liberty to the petitioner to raise the issue of territorial jurisdiction before the trial court, this writ petition is dismissed. There will be no order as to costs."
Ground of Parity
82. Now coming to the ground of parity. Law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied.
83. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in 67 B.A. No.9863/2023 Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, wherein, it has been held as under:
"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.68 B.A. No.9863/2023
26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12- 2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-
13) who were armed with sticks had been granted bail.
The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
84. The Hon'ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement (supra) wherein at paragraph-18, as has been quoted and referred above, it has been 69 B.A. No.9863/2023 held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.
85. It has further been held in the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co-accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. For ready reference, relevant paragraph, i.e., paragraph-19, of the aforesaid judgment reads as under:
"19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons 70 B.A. No.9863/2023 could not claim as a matter of right the benefit on the basis of such wrong decision."
86. This Court in order to come to the conclusion as to whether the case of the petitioner is at par with Bishnu Kumar Agarwala who has been granted bail by the co-ordinate Bench of this Court, needs to consider the allegation as has been surfaced in course of interrogation of the witness as accused persons as available in the ECIR for the purpose of clarification regarding the commission of the Act by Bishnu Kumar Agarwala and the petitioner.
87. This Court deems it fit and proper to refer herein the following paragraphs so as to come to the conclusion that whether the accountability of Bishnu Kumar Agarwala in commission of predicate offence attracting the ingredient of Section 3 of the Act, 2002 is at par with the case of Prem Prakash, the petitioner herein.
88. This Court needs to refer herein the imputation of allegation against the Bishnu Agarwala, which reads as under:-
14.9 Bishnu Kumar Agarwal, S/o Chiranjee Lal Agarwal (Accused no. 9) -
"The accused person was a knowingly a party with the accused persons namely Afshar Ali @ Afsu Khan, Punit Bhargava, Chhavi Ranjan Prem Prakash and others in acquisition crime in form of landed property admeasuring 1 of proceeds acre situated at Plot no. 28, Khata no. 37, Village Gari, Cheshire Home Road, Ranchi. The accused 71 B.A. No.9863/2023 Bishnu Kumar Agarwal was also knowingly a party with the accused Chhavi Ranjan, Ex D.C, Ranchi in acquiring property of the defence, government of India situated at Mauja Siram, Plot no. 908, 851 and 910, Ranchi having total area 5.883 acres by paying only 3 crores although the total consideration amount in the registered deed was frivolously declared as Rs. 15 crores. The accused person Bishnu Kumar Agarwal also became a party with the accused Chhavi Ranjan and knowingly indulged in the process and activity connected with acquisition of another government property (Khasmahal land) situated at Plot no. 543, 544, 545 and 546, Mauja Pugru, Khata no. 93, Namkum Anchal, Ranchi admeasuring 9.30 acres. In this case also, only an amount of Rs. 2.45 crores were paid but, in the deed, a payment of Rs. 5 crores were fraudulently mentioned to be paid to one Ashish Chandra Ganguly (since deceased). In both cases, the accused persons namely Bishnu Kumar Agarwal and Chhavi Ranjan concealed facts and relevant documents that established the above properties were government properties. Thus, the accused Bishnu Kumar Agarwal was knowingly involved in the acquisition of the above three properties in fraudulent manners which were nothing but proceeds of crime.72 B.A. No.9863/2023
Hence, the accused person Bishnu Kumar Agarwal is involved in the activities connected with the acquisition, possession, concealment and use of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property. Thus, the accused person Bishnu Kumar Agarwal has committed the offence of money laundering as defined under section 3 of PMLA, 2002 and is accordingly liable to punished under section 4 of PMLA, 2002."
89. This Court, in order to come to the conclusion as to whether, the principle of parity is to be followed on the ground that the said Bishnu Kumar Agarwala has been granted bail also needs to consider the imputation against the present petitioner which has already been mentioned in preceding paragraph.
90. Now this court is adverting into facts of instant to decide the issue of parity in the backdrop of aforesaid settled legal ratio and further taken in to consideration the aforesaid settled position of law, thinks fit to refer herein distinguishable facts in the case of present petitioner to that the case of Bishnu Kumar Agarwala, who has been granted bail by this Court vide order dated 12.01.2024 in B.A. No. 10166 of 2023.
91. On comparative assessment of the allegation as per the material collected in course of investigation as referred hereinabove, it is evident that against the said Bishnu Kumar Agarwala, the allegation of purchase of the land in question has been alleged and 73 B.A. No.9863/2023 further allegation against him is that he is involved in the activities connected with the acquisition, possession, concealment and use of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property.
92. But, against the present petitioner, the allegation has been leveled as would appear from various paragraphs that after getting the fact that there is some dispute in the record of rights then the interested persons, had contacted the Prem Prakash on the ground that he was having the man of political clout. The present petitioner, Prem Prakash, thereafter, has come into contact with Mr. Chhavi Ranjan, the then Deputy Commissioner, Ranchi.
93. It has further surfaced in course of investigation that the Prem Prakash i.e. present petitioner exerted his influence in order to assist other accused persons in acquisition of the land situated at Cheshire Home Road measuring one acre. Further, investigation has revealed that he has close proximities with the accused persons namely Chhavi Ranjan, Punit Bhargava and others as would evident from the statements as recorded under section 50 of the PMLA 2002.
94. Further during the investigation, it has further come against the petitioner that accused persons Afsar Ali and Saddam Hussain connived with Prem Prakash for fraudulent acquisition/registration of this property in question and then Prem Prakash registered this property in the name of his very close accomplice and confidant namely Punit Bhargava, co-accused persons and the investigation further reveals that though the consideration amount in the deed 74 B.A. No.9863/2023 between Imtiyaz Ahmed and Bharat Prasad and Punit Bhargava was shown as Rs. 1,78,55,800/-, but only an amount of Ra. 25 lacs was paid into the SBI Account no. 31100122501 of the dummy owner/accused Rajesh Rai on 12.02.2021.
95. Further, in the counter affidavit it has been submitted that the accused/petitioner Prem Prakash is an influential person with criminal antecedents as his active role also surfaced in another case of illegal mining for which he was arrested on 25.08.2022 and during searches at his residence, 2 AK 47 assault Rifles were recovered which were in his illegal and unauthorized possession. Further it has come on record that the petitioner's name has also surfaced in the case of fraudulent acquisition of a Defence property at Morabadi, admeasuring 4.55 acres.
96. Learned counsel for the respondent-Directorate of Enforcement, while referring the paragraph nos.22 to 24 of the counter affidavit dated 16.12.2023 has submitted that the accused petitioner, Prem Prakash is hatching conspiracies to derail investigation with other influential persons including the Superintendent and the Jailor, Birsa Munda Central Jail, Hotwar, Ranchi. It has also been stated that Prem Prakash initially tried to establish connections with the Maoists who are languishing in the Judicial Custody at Birsa Munda Central Jail, Hotwar, Ranchi for targeting the officials of the Directorate of Enforcement who are associated with cases linked to him. He has also established contacts with certain gangsters lodged in the Jail for the above 75 B.A. No.9863/2023 purposes.
97. An objection has been raised on behalf of the petitioner by filing an interlocutory application being I.A. No.1400 of 2024 regarding deletion of the statements made in the counter affidavit to the effect that the petitioner is trying to tamper with the evidence and also hatching conspiracy against the E.D. officials but this court vide order dated 16.02.2024, has rejected the said interlocutory application.
98. Therefore, it is evident from the discussion as made above the case of the petitioner is different to that of the said Bishnu Kumar Agarwala as per the allegation.
99. Further, even accepting the said Bishnu Agarwala has been granted bail, however, this Court is of the view that the Bishnu Agarwala has also parted with the forgery and he has been granted bail by the coordinate Bench of this Court.
100. However, this Court is not making any comment upon the order passed by the coordinate bench but as has been held by the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra), wherein, at paragraph 19, the principle has been laid down that Article 14 since envisages the positive equality and not the negative equality and even accepting that the said Bishnu Agarwala has been granted bail, the same cannot be given any aid to the petitioner in view of the applicability of the principle that the Article 14 of the Constitution of India does not envisage the negative equality, rather, it envisages 76 B.A. No.9863/2023 the positive equality.
101. Further, it is required to refer herein that the Money Laundering is an economic offence and economic offences come under the of grave offences hence needs to be visited with a different approach in the matter of bail as held by the Hon'ble Apex court in the case of Y. S Jagan Mohan Reddy Vs. C. B. I., reported in (2013) 7 SCC 439. For ready reference, the relevant paragraphs of the aforesaid judgments are being quoted as under:
"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep- rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
102. Similarly, the Hon'ble Apex Court in case of Nimgadda Prasad Vs. C.B.I., reported in (2013) 7 SCC 466 has reiterated the same view in paragraphs-23 to 25 which reads as under:
"23. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fibre of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364] this Court, while considering a request of the 77 B.A. No.9863/2023 prosecution for adducing additional evidence, inter alia, observed as under: (SCC p. 371, para 5) "5. ... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest."
24. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be 78 B.A. No.9863/2023 able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep- rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
103. It is, thus, evident from the discussion made hereinabove that so far as the case of the present petitioner is concerned, the twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner.
104. Even on the ground of parity as per the discussion made hereinabove, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Bishnu Kumar Agarwala, is quite different.
105. For the foregoing reasons, having regard to the facts and circumstances, as have been analyzed hereinabove as also taking into consideration the statements made in the counter affidavit, the applicant is failed to make out a prima-facie case for exercise of power to grant bail, hence, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 439 of the Code of Criminal Procedure to grant bail. 79 B.A. No.9863/2023
106. Therefore, this Court is of the view that the bail application is liable to be rejected.
107. Accordingly, based upon the aforesaid discussion, this Court is of the view that the instant application is fit to be dismissed and as such, stands dismissed.
108. The observation/finding, as recorded hereinabove, is only for the purpose of consideration of issue of bail. The same will not prejudice the issue on merit in course of trial.
109. Pending interlocutory application(s), if any, also stands disposed of.
Rohit/- A.F.R. (Sujit Narayan Prasad, J.)